United States District Court, D. South Dakota, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION TO SUPPRESS
JEFFREY L. VIKEN, Chief District Judge.
Defendant Arnold Johnston filed a motion to suppress all items seized from him and statements made by him to law enforcement during an encounter with law enforcement on March 8, 2014. (Docket 18). The suppression motion was referred to Magistrate Judge Veronica Duffy for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order dated June 11, 2007. A suppression hearing was held before the magistrate judge on May 20, 2014. (Docket 36). Magistrate Judge Duffy issued an amended report and recommendation on May 29, 2014. (Docket 39). The government timely filed objections to the amended report and recommendation on June 12, 2014. (Docket 41).
The court finds the magistrate judge's amended report and recommendation is an appropriate application of the law to the facts presented by the parties at the suppression hearing. See United States v. Newton , 259 F.3d 964, 966 (8th Cir. 2001). For the reasons stated below, the government's objections are overruled and the amended report and recommendation of the magistrate judge is adopted in its entirety.
THE GOVERNMENT'S OBJECTIONSM
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id . The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
A. MAGISTRATE JUDGE'S FINDINGS OF FACT
The government's objection to the magistrate judge's findings of fact in the amended report and recommendation focuses on one issue. "[T]he finding that [Mr. Johnston] was engaged in non-suspicious behavior is not supported by the video evidence." (Docket 41 at p. 7).
Deputy Nasser believed Mr. Johnston was acting in a suspicious manner from the moment their encounter began. Deputy Nasser testified that as he approached Mr. Johnston, he assumed the position of a person braced against his vehicle and waiting to be frisked.
Q. Where did he have his hands?
A. Both his hands were on the bed of the pickup.
Q. Did you tell him to do that at ...